Consultation Paper on Inchoate Offences - Law Reform Commission

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encouragement or assistance will in fact encourage or assist plus a belief thatthe criminal act will be committed. 67 Liability for these offences is notdependent on the target offence being committed or attempted. Thus, it isenvisaged by the Law Commission for England and Wales that these newoffences will replace incitement as a relational offence, and supplementrather than replace existing law on secondary liability. The LawCommission for England and Wales acknowledges the scope for overlapbetween the new offences and secondary liability.4.42 It might be thought that the intent offence is more serious of thetwo. The punishment for both new offences is, however, the same – itrelates to that of the target offence and can be equal to it. But the intentoffence would be the more difficult to establish; it subsumes the beliefoffence: as instances of the intent offence would also constitute the beliefoffence, but not vice versa. Significantly, the new scheme rules outattributing intention to assist or encourage crime on the sole basis that suchassistance or encouragement was a foreseeable consequence of what wasdone. 68 Sullivan observes that this provision is crucial for differentiating theintent and belief offences given the general practice of inferring intention offoreseen consequences. 69(c)Conclusion4.43 It is important to note that the proposed offences engageprinciples and theory lying behind general part secondary liability. Theyalso serve to greatly alter general part incitement. The Law Commission forEngland and Wales worked on a report on secondary liability 70 at the sametime as the report proposing the new assisting and encouraging crimeoffences. 71 In order to evaluate fully the new offences it would be necessaryto survey and evaluate the existing framework on secondary liability.4.44 That said, some preliminary concerns about the proposed offencescan be noted. One concern is that the belief offence in particular casts thenet of liability very wide. “Encourage or assist” is expansive; possibly moreso than the sum of “encourage” and “assist” because it is easier to put a6768697071Law Commission for England and Wales Report on Inchoate Liability for Assistingand Encouraging Crime (No 300 2006) at 48.Law Commission for England and Wales Report on Inchoate Liability for Assistingand Encouraging Crime (No 300 2006) at 151. section 18 of draft Bill.Sullivan “Inchoate Liability for Assisting and Encouraging Crime – The LawCommission Report” [2006] Crim LR 1047, 1049.Law Commission for England and Wales Report on Participating in Crime (No 3052007).Law Commission for England and Wales Report on Inchoate Liability for Assistingand Encouraging Crime (No 300 2006).117
orderline case into a general “assist or encourage” category than it is tohave to put it in either “assist” or “encourage”. Add to this the inchoatenature of the offences – currently assisting someone in crime is only criminalif the crime is completed. The idea that there is a gap in need of pluggingcan be questioned. Not all behaviour that might be criminalised should becriminalised. A hypothetical case mentioned 72 is where a taxi driverbecomes convinced he is driving his passengers to a destination where theywill commit a robbery. From the point of view of his own safety heprudently carries them to their destination without protest. The taxi driverhas assisted crime and under the new scheme he may be guilty regardless ofwhether the crime is carried out or whether it truly was planned to be carriedout by the passengers.4.45 The Law Commission for England and Wales‟s proposed schemeincludes a defence of reasonableness to the belief offence. Two reasons castdoubt on how successful this defence would be in preventing conviction ofthose who ought not to be convicted, or indeed the prosecution of those whoought not even to be prosecuted in the first place. One reason is thevagueness and uncertainty of the defence – reasonableness is undefined –different officials at different stages of the criminal process may have adifferent idea of the circumstances in which the defence operates. Thesecond reason is that the defendant bears the burden of proving the defence.As such it is a departure from the presumption of innocence, which isfounded among other things on the very real concern about the difficultiesthat the ordinary accused faces in proving things in court against the betterequipped State. 734.46 On balance the Commission is not convinced of the need toreplace incitement with a new offence of assisting or encouraging crime.The Commission is particularly concerned that the new offence would castthe net of criminal liability too wide.4.47 The Commission provisionally recommends that the common lawoffence of incitement should not be replaced with a new relational inchoateoffence of assisting or encouraging crime.(2) Free speech4.48 The act of incitement is essentially a speech act; criminalisingincitement restricts speech. As such, incitement interferes with freedom ofexpression rights contained in the Constitution 74 and the European727374See Sullivan “Inchoate Liability for Assisting and Encouraging Crime – The LawCommission Report” [2006] Crim LR 1047, at 1054 for a variant.See Roberts “Taking the Burden of Proof Seriously” [1995] Crim LR 783.Article 40.6.1°(i).118
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Consultation <stro
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Law Reform CommissionTHE LAW REFORM
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Law Reform CommissionLaw Reform Res
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Law Reform CommissionContact Detail
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TABLE OF CONTENTSTable of Legislati
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TABLE OF LEGISLATIONAbortion Act 19
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Lajoie v R [1974] SCR 399 CanLeigh
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R v O‟Brien [1954] SCR 666 CanR v
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INTRODUCTIONABackground to the proj
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5. Inchoate offences do not exist i
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11. Chapter 1 explores the nature o
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CHAPTER 1INCHOATE LIABILITYAIntrodu
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its pure relational form as an agre
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D(1) LegalityCriminal law theory en
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1.16 Some textbook writers reverse
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one resulted in conviction by the j
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1.30 Evident here is a principled r
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excusatory defences 51legitimate de
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codifying inchoate offences will be
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called “the proximity rule” to
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Appeal, was because more than one i
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accused for which she stood trial a
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defendant had progressed well beyon
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And it is costly to try - police an
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and subsequently abolished in New Z
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“proximate” was more like “ne
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providing, bluntly, that attempting
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unlawful entry of a structure, vehi
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drafted by James Fitzjames Stephen,
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2.68 The Law Commission for England
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crime; (2) an overt act toward the
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(3) D commits an offence or an act
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the Court of Criminal Appeal has ap
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activity. Purposive activity is int
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a Working Party assisting the Law C
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consequences/circumstances distinct
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inchoate liability) because such pr
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Oireachtas has sole law-making powe
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either label could be applied to a
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2.135 Perhaps Walsh J, when imagini
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Page 87 and 88: man carried away his own umbrella d
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Page 91 and 92: ii)Having an abandonment defence gi
Page 93 and 94: i) The would-be perpetrator had a c
Page 96 and 97: 3CHAPTER 3CONSPIRACYAIntroduction3.
Page 98 and 99: two or more persons involving resol
Page 100 and 101: 3.12 The People (Attorney General)
Page 102 and 103: the Brighton Conspiracy Case 37 sta
Page 104 and 105: Henchy J went on to state, obiter,
Page 106 and 107: conspiracy is exempt from liability
Page 108 and 109: Subsequently, in R v Anderson, 73 t
Page 110 and 111: (b)(i)Non-criminal unlawfulnessTort
Page 112 and 113: “[A]n agreement by two or more by
Page 114 and 115: decency, which has an ancillary inc
Page 116 and 117: where they will fall in.” The ice
Page 118 and 119: abolishing the latter but not the f
Page 120 and 121: G(a)Abandonment of a conspiracyThe
Page 122 and 123: 4CHAPTER 4INCITEMENTAIntroduction4.
Page 124 and 125: approach to that of the common law.
Page 126 and 127: (v)Incitement need not be directed
Page 128 and 129: verbs used to describe a physical a
Page 130 and 131: 4.23 It is noted that while the act
Page 132 and 133: direction. The analysis of criminal
Page 134 and 135: (iii)Inciting non-criminal conduct4
Page 138 and 139: Convention on Human Rights. 75 Inci
Page 140 and 141: conduct incited. This position was
Page 142 and 143: 5CHAPTER 5PROVISIONAL RECOMMENDATIO
Page 144 and 145: (4) Impossible conspiracies5.21 The
Page 146: The Law Reform Commission is an ind
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Consultation Paper on Inchoate Offences - Law Reform Commission

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